“Conventional wisdom” says that oral argument is a “mere formality,” unlikely to change the mind of a judge who’s already read a brief, Stewart G. Milch, a partner in Goldberg Segalla’s Appellate Practice Group, writes in Law360.
But conventional wisdom is, in this case, neither very conventional nor very wise. Waiving the right to oral argument, Stewart explains, risks much without any promise of reward. Besides the (real, if rare) possibility of changing a judge’s mind, oral argument offers a crucial “opportunity to build consensus around a narrower holding.”
According to Stewart, oral argument is a chance to fill the “gaps” of questions from justices that an attorney might not have predicted. Oral arguments will also impart some direction to the voting conferences that follow. Even for seemingly lost causes, oral argument allows an attorney at any stage of his or her career to gain valuable experience and credibility as a skilled advocate through “meaningful dialogue” with the court.